Karnataka High Court
M. Javerilal vs N. Achalraj Jain on 12 October, 2004
Equivalent citations: 2005(1)KARLJ76, 2005 A I H C 302, 2004 AIR - KANT. H. C. R. 3477, (2005) 1 RENCJ 200, (2005) 1 RENCR 262, (2005) 1 KCCR 333, (2005) 1 KANT LJ 76, (2005) 1 RENTLR 263
Author: Ajit J. Gunjal
Bench: Ajit J. Gunjal
ORDER Ajit j. Gunjal, J.
1. These revision petitions are disposed of by this common order HRRP No. 89 of 2000 is filed by the tenant and HRRP No. 140 of 2000 is filed by the landlord. During the course of this order, the landlord would be referred to as the petitioner and the tenant as the respondent.
2. Two eviction petitions were filed in HRC No. 218 of 1997 and HRC No. 217 of 1997. HRC No. 218 of 1997 relates to the first floor and HRC No. 217 of 1997 relates to the ground floor. Both the eviction petitions were filed by the common landlord Under Section 21(1)(h) and (p) of the Karnataka Rent Control Act, 1961 corresponding to Section 27(2)(r) of the Karnataka Rent Act, 1999. The learned Trial Judge recorded common evidence in both the eviction petitions as the parties to both the petitions were common. The learned Trial Judge on consideration of material on record granted eviction in respect of ground floor which relates to HRC No. 217 of 1997 against which the tenant has come up in revision in HRRP No. 89 of 2000. Insofar as HRC No. 218 of 1997 which relates to the first floor, the said eviction petition was dismissed and the landlord has come up in revision in HRRP No. 140 of 2000. The sum and substance of both the petitions and the statement of objections are common.
3. The facts in brief can be stated in a nut shell as under:
It is the case of the petitioner that he is the absolute owner of the property in question bearing No. 1 which is popularly known as Rajendra Market, Avenue Cross Road, Bangalore. It is his case that the said property consists of five shops on the ground floor and three shops on the first floor. It is his case that at the time of filing the eviction petition he was carrying on business in textile in shop No. 7 in the first floor. So far as the other shops are concerned they are tenanted. The respondent in both the eviction petitions who is common is in occupation of shop No. 3 on the ground floor (subject-matter of HRC No. 217 of 1997) and shop No. 5 on the first floor (subject-matter of HRC No. 218 of 1997). The respondent has taken these two premises in question on a monthly rent of Rs. 300/- and Rs. 225/- respectively. According to the petitioner, the tenancy is a monthly tenancy commencing from first of each calendar month. The petitioner would state that he has two sons, namely, Kantilal who is aged 25 years and Kishore who is aged 21 years. Shop No. 7 wherein the petitioner is carrying on textile business in the name and style of "N.D. Cutpiece Centre" measures 10' x 13' and he has been carrying on the business in the said premises since several years. It is his case that the eldest son, namely, Kantilal has come of age and has also commenced his own business in textile under the name and style of "Maan International" in the said shop as he did not have any alternate premises to commence the said business. It is his case that he has been doing the said business of Maan International since five years prior to filing of the eviction petition. The petitioner requested the respondent to vacate the shop premises which is in occupation so that he can accommodate his first son, namely, Kantilal to carry on business in the said premises. It is his case that the business which is carried on by the first son has grown by leaps and bounds and it is impossible for him to carry on his business in Shop No. 7 where he is presently carrying the business. It is his further case that his second son, namely, Kishore has also come up of age and having completed his education proposes to start a business of his own. It is the case of the petitioner that both the business concerns cannot be carried on in the existing premises, namely, shop No. 7 and was seeking possession of shop Nos. 3 and 5 which are on the ground and first floor. He would say that the petitioner and his second son propose to carry on the business of textile independently in a separate premises so that the eldest son can have his own independent business to eke out his livelihood, foreseeing there might be clash or difference of opinion in future. In the circumstance, the petitioner being the father decided that his second son would carry on the business in the existing premises i.e., shop No. 7 on the first floor. Since shop No. 5 is on the first floor and the second son also proposes to carry on the business in the first floor he sought eviction of the said premises on the ground that it would be easier for them to carry on the business in close proximity. Insofar as the premises on the ground floor, he would state that the first son Kantilal proposes to start business in textile. The alternate case made out by the petitioner is that the respondent has come in vacant possession of another shop premises at building No. 21, 2nd floor, Channarayaswamy temple Street, Ganigarpet, Bangalore, where he has been carrying on his textile business. According to him, the said premises is suitable for his business. In the circumstances he would claim that the respondent is also liable to be evicted Under Section 21(1)(p) of the old Act. He has further stated that on an earlier occasion he had filed an eviction petition in the year 1994 in HRC No. 467 of 1994. Since one single petition cannot be filed in respect of two premises, an application was made seeking withdrawal of said eviction petition with liberty to file two eviction petitions on the same cause of action and the same was granted and he was permitted to withdraw the said petition. In these circumstances, the present two eviction petitions are filed by him seeking eviction.
4. In response to the notice issued, the respondent entered appearance and has tenaciously contested the eviction proceedings. He would say in his statement of objections that the eviction petition is filed with oblique and ulterior motive only to harass him. He would say that the petitioner having failed in the earlier proceedings albeit by withdrawing the said eviction petition, the fact remains that the petitioner proposes to obtain possession of the shop premises both on the ground floor and of the first floor by hook or crook. He has denied that the petitioner's children are doing business of their own and each son would require separate premises to carry on the business. According to him, there is no real genuine reason for seeking eviction and there is no necessity also to seek additional and further accommodation. It is his case that the petitioner has come in possession of two shops already one through the Court order which is being used by the petitioner and another which was being let out to another tenant on higher rent. According to him, these two grounds would clearly indicate that there are no bona fides at all in the claim of the petitioner. It is his case that the second son, namely, Kishore is already doing business and the accommodation available to him is more than sufficient. It is his case that the portion of the ground floor and the portion of the first floor cannot be joined by means of a staircase and the said averment is totally false. He has further denied that he is in possession of any shop premises in Channarayanaswamy temple street. He would further object to the eviction petition inter alia contending that the petitioner is not entitled for possession either for his bona fide use and occupation or for that matter, he having come into vacant possession of another shop premises. Consequently, sought for dismissal of the eviction petition.
5. During the pendency of the eviction petitions, the Karnataka Rent Control Act, 1961 having been repealed and replaced by Karnataka Rent Act, 1999, the same was disposed of in accordance with the new Act.
6. The parties went to trial on these pleadings. During the course of the trial, the petitioner examined his first son Kantilal as P.W. 1 and one Jugraj as P.W. 2. In support of the various contentions raised in the eviction petition, the petitioner has produced Exs. P. 1 to P. 17 by way of documentary evidence. In response to this, the respondent has examined himself as R.W. 1 and has produced Exs. R. 1 to R. 12.
7. The learned Trial Judge has framed the following points for determination:
(1) Whether schedule premises in HRC No. 217 of 1997 is bona fide and reasonably required for the petitioner's eldest son Mr. Kantilal to carry on the business in textile?
(2) Whether the schedule premises in HRC No. 218 of 1997 is bona fide and reasonably required by the eldest son of the petitioner, Mr. Kantilal for using the same as godown?
(3) To whom greater hardship will be caused if eviction order is passed or refused?
(4) Whether the respondent in these cases has acquired alternative accommodation of another shop premises which is suitable for his business and he is liable to be evicted Under Section 21(1)(p) of the K.R.C. Act?
(5) Whether an order of partial eviction is feasible in this case?
(6) What order?
8. On consideration of the material on record, the learned Trial Judge was of the opinion that the eviction petition in HRC No. 217 of 1997 is to be accepted as the petitioner's first son wants to carry on the business in textile in the ground floor shop. Insofar as the second eviction petition is concerned whether HRC No. 218 of 1997 which relates to the first floor, the learned Trial Judge was of the opinion that the petitioner has failed to prove that he proposes to use the same as godown by opening a staircase. In the circumstances, the learned Judge was of the opinion that the claim in respect of the ground floor was genuine. So far as the claim in respect of the first floor it would lack bona fides. Aggrieved by the said orders passed in both the eviction petitions, both the petitioner as well as the respondent have come up in revision petitions.
8-A. Mr. Mohan, learned Counsel appearing for the respondent would vehemently contend that the petitioner has failed to prove that his sons are carrying on the business in the name and style of N.D. Cutpiece Centre. He would submit that there was a partition between the members of family of the petitioner and pursuant to the said family partition there was an exchange deed also which is evidenced by Ex. P. 8. Under the said document namely Ex. P. 8 which is styled as deed of exchange of property, he would submit that shop No. 23/2 of Basavaraj Market fell to the share of the petitioner and the same was given to Kantilal and he had kept it vacant under lock and key. In the circumstances he would submit that there is no element of need in the requirement of the petitioner. He also referred to the earlier eviction petition. He would reiterate his stand that the petitioner was not carrying on the business in N.D. Cutpiece Centre in shop No. 7. According to him, the whole thing is a make believe and consequently would commend that the eviction petitions are liable to be dismissed. He would also support the reasoning of the learned Trial Judge in dismissing the eviction petition which relates to the first floor. He has also referred to me the evidence of the parties to the proceedings.
9. The learned Counsel appearing for the petitioner (landlord) would submit that the evidence of P.W. 1 i.e., the first son at paras 4 and 5 would clearly establish that he want to start a business in the ground floor. He has drawn my attention to Ex. P. 2 the sketch of the shops. He would also refer to certain sales tax documents in respect of N.D. Cutpiece Centre. Insofar as the earlier eviction petition is concerned, he would submit that no motive can be attributed for withdrawal of the eviction petition since on technical ground the said eviction petition was likely to fail as single petition would not be maintainable in respect of two tenanted premises. He has also referred to me Exs. P. 14 and P. 15 which are the income-tax returns and the exchange deed of 1991 which is marked as Ex. P. 8. Insofar as whether the property in question has come to the share of the petitioner, he has relied on Exs. P. 16 and P. 17 which are marked through P.W. 2-Jugraj. Ex. P. 16 is the original partition deed and Ex. P. 17 is the translated copy. He would further submit that the Trial Court has taken into consideration the relevant material on record inasmuch as it has noted that the requirement of the petitioner in respect of the ground floor shop is imminent and there is an element of need. In the circumstances, he would submit that the order of eviction insofar as the ground floor is concerned is not liable to be interfered with. Insofar as the revision petition filed by the petitioner for possession in respect of the first floor, he would submit that it has come in evidence that the petitioner proposes to put a staircase and have an opening of shop on the first floor so that it can be used as a godown. In the circumstances, he submit that the learned Trial Judge was not justified in dismissing the said eviction petition. Consequently, he would commend that the revision petition filed by the respondent be dismissed and the one which is filed by him be accepted.
10. I have been taken through the entire evidence on record as well as the judgment. If one were to marshal the contentions on either side, it revolves around only two questions - one is whether the requirement of the petitioner has an element of need? and the other ... whether the petitioner has an alternate premises?
11. It is not in dispute that this particular property fell to the share of the petitioner in a family partition. It is also an admitted fact that the petitioner is carrying on both the business in shop No. 7 in the name of Maan International and N.D. Cutpiece Centre. In this regard the oral evidence would clearly disclose that the petitioner's first son Kantilal has been carrying on the said business in the name and style of Maan International and the income-tax returns and sales tax returns would clearly disclose that they have been carrying on the said business and the annual turnover runs into a couple of lakhs; it would mean that it is a flourishing business. The income-tax returns also would clearly disclose that it is a flourishing business. Admittedly shop No. 7 which is on the first floor which measures 13' x 10', according to the petitioner, is congested, inasmuch as they are not in a position to carry on the business of both Maan International and N.D. Cutpiece Centre. In the circumstances, it cannot be said that the requirement of the landlord/petitioner does not have an element of need.
12. The bona fide requirement of landlord has undergone a sea-change under the new enactment. What is required to be proved Under Section 27(2)(r) of the new Act are only two components - one is requirement and another is non-availability of suitable premises. Both the conditions will have to be satisfied for seeking eviction. Insofar as the requirement is concerned, as observed earlier, it cannot be said that seeking possession of the ground floor is a mere desire of the petitioner. It is to be noticed that the family of the petitioner consists of three able bodied persons i.e., the petitioner himself and his two sons. It is not unreasonable for a father to set up his two children in two different premises so that they can continue or come up in business. In this context if one looks at the evidence on record both oral and documentary, it becomes evident that the requirement of the petitioner does have an element of need.
13. Insofar as the availability of alternate premises, on which the learned Counsel appearing for the respondent was pin-pointing, namely the shop at Basavaraj Market; is concerned, it is to be noticed that the evidence in this regard is very sketchy. It is no doubt true that particular shop might have been come in possession of the petitioner but that by itself cannot be said that the said premises is available and can be termed as an alternate suitable premises. Time and again it has been stated it is not open to the tenant to dictate the landlord how he should carry on business or where he should carry on and where and how he should reside; that falls in the requirement of the landlord. In this regard the Apex Court in the case of Ragavendra Kumar v. Firm Prem Machinery and Company, has stated thus:
"It is a settled position of law that the landlord is the best Judge of his requirement for residential or business purpose and he has got complete freedom in the matter. In the case in hand the plaintiff landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted".
In this circumstance, it can be said that one will have to come to the conclusion that both the components of Section 27(2)(r) having been complied with there is no option for the Court but to grant an order of eviction. Another factor which requires to be looked into is that whenever a statement or an affidavit is filed by landlord a presumption will have to be raised in favour of the landlord that the requirement is genuine and is for the benefit of the family. It is no doubt true that such presumption is a rebuttable one. But, if one were to look at the evidence led by the respondent-tenant, it falls short of the requirement of the rebuttable evidence. In this regard, it is necessary to refer to a judgment of the Apex Court in P. Suryanarayana (dead) by L.Rs v. K.S. Muddugowramma, , which reads as follows:
"Presumption as to requirement of landlord - mandatory and has to be drawn - has the effect of shifting the burden of proof on tenant - landlord can rest on presumption - tenant to rebut - Landlady, a widow - applicability of presumption attracted".
14. In view of these findings and also the law on the question of requirement and suitability of alternate premises, the order passed by the learned Trial Judge in HRC No. 217 of 1997 requires to be confirmed.
15. Insofar as the other eviction petition, namely, HRC No. 218 of 1997 which relates to the first floor, it is noticed that the Trial Court has bestowed its attention on that question and was of the opinion that the pleadings and the evidence would fall short of the definition of "requirement" and consequently has declined to accept the said eviction petition. The said finding recorded by the Trial Court cannot be said either erroneous or would warrant interference in this revision petition.
16. After giving my anxious consideration to the oral evidence as well as documentary evidence and the rival contentions urged by both the Counsels, I am of the considered view that both the revision petitions are liable to be dismissed and accordingly they stand dismissed.